McCall v. Southern Ry. Co.

• Decision Date: 10 December 1901
• Citation: 40 S.E. 67,129 N.C. 298
• Parties: McCALL v. SOUTHERN RY. CO.
• Court: North Carolina Supreme Court

40 S.E. 67

129 N.C. 298

McCALL v. SOUTHERN RY. CO.

Supreme Court of North Carolina

December 10, 1901

Appeal from superior court, Mecklenburg county; Hoke, Judge.

Action by M. J. McCall against the Southern Railway Company. From a judgment in favor of the plaintiff, the defendant appeals. Affirmed.

Montgomery and Cook, JJ., dissenting.

The court, after instructing that the plaintiff must exercise due care, and, if she does not, and brings the injury on herself her own negligence is the proximate cause, and recovery is barred, and that it was negligent for her to go on the track instructed that, if the plaintiff was in a position of peril and the defendant negligently failed to avoid the injury by stopping the train, then the plaintiff would not be guilty of contributory negligence, as her negligence would not be the proximate cause. Held, that the instruction was not contradictory.

G. F Bason and A. B. Andrews, Jr., for appellant.

Osborne, Maxwell & Keerans, for appellee.

FURCHES C.J.

The plaintiff was injured by the defendant's train, and brings this action for damages. The defendant is now, and was at the time of the injury, operating two railroads that run into the city of Charlotte. One of them is known as the Atlantic, Tennessee & Ohio Railroad, from Charlotte to Statesville, and the other runs to the city of Atlanta, Ga., and is known as the Atlanta & Charlotte Air Line Railroad. In passing through the city of Charlotte, the tracks of these two roads parallel each other for a considerable distance, and for a considerable distance these tracks are not more than eight feet apart, and the projection of the coaches on these roads is something near two feet and a half beyond the rails of the track; so that, when the coaches on the two roads pass each other, they leave a space between them of not more than three feet and a half, if that much. At the time the plaintiff was injured, the train on the Atlantic, Tennessee & Ohio road and the train on the Air Line were passing each other; the Atlantic, Tennessee & Ohio train going north, and the Air Line going south. The plaintiff was walking north on the Atlantic, Tennessee & Ohio road, when she heard the train of that road coming, and stepped off the track of that road to let the train pass, and was looking at that train as it approached. She had her little boy, six years old, with her, and he became very much frightened, and she had to hold him to keep him out of danger of being run over. While she was thus standing between the tracks of the Atlantic, Tennessee & Ohio road and the Air Line road, the two trains passed her at the same moment of time, one on one side and the other on the other, when she was struck by the Atlanta Air Line train, and received the injuries complained of. It was in evidence that these tracks were much traveled by footmen in passing from one part of the city to the other, although the public was notified not to do so. The conductor on the Atlanta Air Line testified that he was running his train at the rate of 6 or 7 miles an hour; that he saw the plaintiff and the little boy when he was 125 or 200 yards from them, and could have stopped his train before reaching them, but did not think them in danger. These seem to be the substantial facts as disclosed by the evidence. The following issues were submitted to the jury, and found as indicated:

"(1) Was the plaintiff's injury caused by the negligence of the defendant? Yes. (2) Was plaintiff guilty of contributory negligence? No. (3) What damage is plaintiff entitled to recover? $900." There are two exceptions to evidence, but they are the same in substance and legal effect. The plaintiff introduced evidence to show that the defendant's track, where the plaintiff was injured, was much used as a walkway by the public. To this the defendant objected and excepted. But it seems that the ruling of the court is sustained by Cox v. Railroad Co., 126 N.C. 106, 35 S.E. 237; Id., 123 N.C. 604, 31 S.E. 848; and Arrowood v. Railroad Co., 126 N.C. 630, 36 S.E. 151.

The defendant assigns for error: "(1) The admission by the court of evidence duly excepted to by defendant, which is the grounds of defendant's first exception. (2) The refusal of the court to nonsuit the plaintiff at the close of the plaintiff's evidence, which is the ground of defendant's second exception. (3) The refusal of the court to nonsuit the plaintiff at the close of the whole evidence, which is the ground of defendant's third exception. (4) To the charge of the court as is set out in defendant's exceptions numbered 4 to 7, inclusive. (5) The refusal of the court to grant a new trial as prayed for by defendant, which is covered by defendant's eighth exception."

The first exception as to the admission of evidence has already been disposed of, and is not sustained.

The second exception cannot be sustained. Several decisions of this court and the act of the legislature of 1901 (chapter 594) are against it. Parlier v. Railway Co. (at this term) 39 S.E. 961.

The third exception cannot be sustained. There is certainly enough evidence to carry the case to the jury.

"(4) To the charge of the court as is set out in defendant's exceptions numbered 4 to 7, inclusive." We find some difficulty in discussing this exception, for the reason that none of them are numbered in the record. They seem to be indicated by letters designating certain paragraphs in the charge of the court as excepted to. The first of them is as follows: (a) "But if a grown person is evidently inattentive to the approach of the train, and in a position of such apparent danger that ordinary prudence could not extricate them, then in that case it becomes the duty of the engineer to warn them at once by signal, and stop the train if necessary in order to save them, if he could do so by the exercise of proper care." If this paragraph stopped...